1. The present second appeal u/s.100 of the Code of Civil Procedure has been preferred by the appellant herein – original defendant to quash and set aside the impugned judgement and decree dated 8/10/2001 passed by learned Civil Judge (J.D.), Dahod in Regular Civil Suit No.265 of 1998 as well as impugned judgement and order dated 03/02/2012 passed by learned Appellate Court i.e. learned 5th Additional District Judge, Dahod in Regular Civil Appeal No.155 of 2004 (Old No.61 of 2001), by which, learned Appellate Court has dismissed the said appeal confirming the judgement and decree passed by learned Trial Court decreeing the suit.
2. That the respondent herein – original plaintiff instituted Regular Civil Suit No.265 of 1998 against the appellant herein – original defendant for recovery of possession and for permanent injunction. It was the case on behalf of the original plaintiff that the appellant herein – original defendant is in illegal occupation and possession of the suit premises.
The suit was resisted by original defendant by filing written statement and by submitting that the mother of the original defendant was in possession of the suit property as permanent member of the Trust and, therefore, defendant cannot be said to be in illegal occupation and possession of the suit premises. It was further submitted that the suit instituted by the President of the Trust only, was not maintainable. It was the case on behalf of the original defendant that the suit filed by the plaintiff without prior permission of the charity commissioner, is not maintainable. That the learned Trial Court framed issues and both the sides lead evidence and on appreciation of evidence, learned Trial Court held that the defendant has failed to prove that either his mother or his brother or he himself is permanent member or office bearer of the Trust and, therefore, learned Trial Court held that the defendant is in illegal occupation and possession of the suit premises and, therefore, decreed the suit.
3. Being aggrieved by and dissatisfied with the judgement and decree passed by learned Trial Court in Regular Civil Suit No.265 of 1998, the appellant herein – original defendant preferred the Regular Civil Appeal No.61 of 2001, which was subsequently renumbered as Regular Civil Appeal No.155 of 2004 and learned Appellate Court i.e. learned 5th Additional District Judge, Dahod by impugned judgement and order dated 03/02/2012 has dismissed the said appeal confirming the judgement and decree passed by learned Trial Court.
Being aggrieved by and dissatisfied with the judgement and orders passed by both the Courts below, the appellant herein – original defendant has preferred the present second appeal u/s.100 of the Code of Civil Procedure.
4. Mr.M.A.Kharadi, learned advocate appearing on behalf of the appellant herein – original defendant has vehemently submitted that both the Courts below have materially erred in passing decree for possession in favour of the original plaintiff and against the original defendant, as the mother of the defendant was permanent member of the Trust and, therefore, it cannot be said that the occupation and possession of the defendant is unauthorized. It is further submitted that as such the suit filed by the plaintiff-trust through the President only, is not maintainable. It is further submitted that as such before instituting the Suit, prior permission of the Charity Commissioner was not obtained and, therefore, the suit was not maintainable. It is further submitted that the suit was required to be dismissed on the ground of non-joinder of the proper party i.e. mother of the defendant.
By making above submissions, it is requested to admit/allow the present second appeal.
5. The present second appeal is opposed by Mr.Dhirendra Mehta, learned advocate appearing on behalf of the respondent herein – original plaintiff. Learned advocate appearing on behalf of the respondent herein – original plaintiff has submitted that as such there are concurrent findings of facts given by both the Courts below that the appellant herein – original defendant has failed to prove that either his mother or his brother or he himself is permanent member of the Trust. Therefore, it is submitted that no illegality has been committed by both the Courts below in passing decree for possession. Relying upon the decision rendered by this Court in the case of Nadiad Nagarpalika, Nadiad V/s. Vithalbhai Zaverbhai Patel and others reported in 1980 GLR 792 as well as in the case of Trustees of Hareshwar Mahadev Trust V/s. Trustees of Shri Jasvantsinhji Audichya Brahman Boarding Vidyarthi Bhavan reported in 1998(1) GLR 434, it is submitted that it cannot be said that the suit filed by the plaintiff-trust through its President and that too, without obtaining prior permission of the Charity Commissioner, was not maintainable.
By making above submissions and relying upon above decisions, it is requested to dismiss the present appeal.
6. Heard learned advocates appearing on behalf of the respective parties at length.
At the outset, it is required to be noted that there are concurrent findings of facts given by both the Courts below that the defendant has failed to prove that defendant was in legal occupation and possession of the suit premises.
It was the case on behalf of the defendant that his mother was permanent member of the Trust and, therefore, during her lifetime she had right to stay in the suit premises and, therefore, possession of the defendant being her son cannot be said to be unauthorized and illegal. It is required to be noted that on appreciation of evidence, both the Courts below have held that the defendant has failed to prove by leading evidence that either his mother or his brother or he himself is permanent member of the Trust. Under the circumstances, no illegality has been committed by both the Courts below in holding that the defendant has no right to continue with the possession and his occupation and possession is unauthorized. Consequently, no illegality has been committed by both the Courts below in passing decree for possession in favour of the plaintiff and against the defendant.
7. Now so far as contention on behalf of the defendant that before filing the suit the plaintiff has not obtained prior permission of the Charity Commissioner as required u/s.50 of the Bombay Public Trust Act is concerned, as the suit was filed by the plaintiff for getting eviction decree and for getting possession of the suit property from the defendant, as observed by this Court in the case of Trustees of Hareshwar Mahadev Trust (supra) without permission of the charity commissioner, suit would be maintainable. The aforesaid issue is covered by the decision of this Court in the case of Nadiad Nagarpalika (supra).
8. Now so far as contention on behalf of the defendant that the suit was required to be dismissed on the ground of non-joinder of proper party is concerned, it is required to be noted that as such the defendant was found to be in unauthorised occupation and possession of the suit premises and, therefore, the suit was filed against the defendant, who was found to be in possession of the suit premises. It is required to be noted that there are findings of facts given by learned Trial Court that mother and brother of the defendant are residing in another premises. Considering the aforesaid facts and circumstances of the case, when only defendant was found in possession and occupation of the suit premises and the suit was filed against the defendant, who was in illegal occupation and possession of the suit premises, mother of the defendant was not required to be joined as party in the said suit. Under the circumstances and on the aforesaid ground, the impugned judgement and decree passed by learned Trial Court confirmed by learned Appellate Court is not required to be interfered with by this Court in exercise of powers under section 100 of the Code of Civil Procedure.
9. In view of the above and for the reasons stated hereinabove, there is no substance in the present second appeal and the same deserves to be dismissed and is accordingly dismissed.
In view of the dismissal of the main second appeal, no order in Civil Application No.5501 of 2012 and the same is also accordingly dismissed. No costs.
*dipti [M.R.SHAH,J]